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Brussels Sprouts II – this time it’s jurisdictional

There haven’t been any posts since Christmas, because there haven’t been any judgments published. That’s sort of the way that a topical law blog works – when the Courts go quiet, I go a bit quiet too.

This one from the High Court, Mostyn J, is not what one could describe as interesting (Brussels II cases are NEVER interesting) but in the context of the biggest child protection story of last year, it might be politically important.  (I was hoping someone else would write it up first, as I had my fill of BRII with all of the Slovak cases last year)

 

Re D (A child) 2013 http://www.bailii.org/ew/cases/EWHC/Fam/2013/4078.html

Brussels II is basically legal shorthand for meaning the mechanism by which the Court in one EU state says to another “Actually, you know that case you’re dealing with – well, we think it ought to come over to us and we’ll deal with it”. It is also important to note that where a BRII application is made, the rules are that it must be determined within six weeks.

You may remember a lot of discussion in the media about the C-section case as to why our courts were dealing with it at all – the answer is fairly simple – the child was physically here, an English Court was presented with an application, and no Italian Court made an application under Brussels II for the case to be transferred lock stock and barrel to them, nor did anyone else.

 

Anyway, this one involved a family who were in the UK but had originated from the Czech Republic  – care proceedings were initiated here, and eventually a plan of adoption was put forward.  The background is set out here

    1. The background to this case is set out in my very full fact-finding judgment dated 30 November 2012 ([2012] EWHC 3362 (Fam)). As I said there, the story that unfolded before me was wrenchingly dispiriting and was one of abuse, misery, exploitation, criminality, and unrelenting vice. The father here was the step-father of the mother. He seduced her (thereby committing the crime of sexual activity with a child family member as defined in sections 25 and 27 Sexual Offences Act 2003) at the same time that he was sleeping with the mother’s own mother. The mother’s half-siblings were allowed to be aware that their father was sleeping with their sister. The father plied the mother with drugs. It was a truly appalling state of affairs.

 

  1. In short, the judgment described the father as a malevolent Svengali. It described how on Day 5 of the hearing he fled to the Czech Republic.

 

The Czech authorities became involved, and put forward a plan whereby the mother and the child would live in the Czech Republic together, with support. The mother also sought to transfer the proceedings to the Czech Republic. (It would be fair to say that the Czech Republic were fairly lukewarm in their enthusiasm for that)

For the child therefore, the jurisdictional issue was not a merely semantic one – the decision as to whether this was properly an English case or a Czech one would determine whether the child would be adopted or live with mother.  Both sides indicated that they would seek leave to appeal if the decision went against them.

    1. It is important to recognise what an order authorising a transfer request under Article 15 entails. It is a request of the foreign court, no more than that. It is not a request to the government of the other EU state. Nor is it a request to its executive arm, the central authority. Nor is it a request to the local authority of the municipality of the foreign state. It is a request to a fellow EU court. And that court has the final say on whether to accept the case or not. It must decide within six weeks. If it accepts the request the case will go there. If it does not it will stay here and be determined here.

 

    1. In my judgment although Article 15 is neutrally phrased it contains an important subtext which is that in child public protection cases the court of a fellow EU state ought, all other things being equal, to decide the future of its own nationals unless the connection of the child to his or her homeland has become so tenuous as to be an irrelevant consideration.

 

  1. But in most cases all things are not equal. And so a scrutiny of the facts must be made in each case.

Mostyn J decided that on the facts of the case the case ought to be transferred to the Czech Republic IF AND ONLY IF, having been told of that decision, the Czech Courts agreed to do so within six weeks, otherwise it would remain in the UK.

 

The important things about this case are :-

 

1. For the first time I am aware of, the application under BRII was made not by the foreign country or court, but by a party to the UK proceedings (Mostyn J specifically concludes that this is acceptable under BRII and that the application can originate from inside the proceedings – thus for the first time there’s a mechanism by which a party in the UK proceedings can try to PUSH the proceedings to another jurisdiction, rather than having to rely on that country seeking to PULL them). In the words of Ron Burgundy – that’s kind of a big deal.

 

2. Mostyn J highlights that in the Czech Republic there is no non-consensual (forced) adoption, and the tension therefore with the Supreme Court authority in Re B that a placement order should only be made if nothing else will do.

3. He also highlights that it is not for English Courts to critique foreign systems or indeed the actions of foreign social workers.

4. The case is obviously going to be appealed, and that will be an opportunity for the Court of Appeal to give some guidance on this issue, which will crop up more and more frequently, of how to deal with cases where one or both parents is living or plans to live in another EU country by the time of the final hearing.

In my opinion the Court of Appeal needs to consider the very difficult issues thrown up by this case and to give definitive guidance as to how future Article 15 requests in public law cases should be dealt with. Certainly I would have thought that they would wish to emphasise that any court hearing a public law case where there is a potential Article 15 aspect should raise this with counsel at an early stage and give consideration to transfer to the High Court. But that will be for them. I confine myself only to granting permission to appeal to the local authority and to the Guardian. Any appeal must be heard with great expedition and I understand that the Court of Appeal would be able to hear the appeal in the first week of the forthcoming Lent term, and in fact will be giving directions later today.

 

So, is being from another EU country a get out of jail free card? Well, perhaps, perhaps not

 

    1. The evidence here suggests that save in cases of abandonment adoption in the Czech Republic is only permitted with parental consent. It is therefore even more momentous where a local authority seeks this remedy in a case where the laws of the child’s homeland would not allow it. Indeed, it may fairly be said to give rise to diplomatic and political questions about the relations between states within the Union.

 

  1. I am fully alive to the fact that in 2004 this family came to this country and settled here. Social Services were not involved with the family until October 2011. When a family immigrates here they must be taken to accept all our laws whether they relate to tax, crime or the protection of children. The fact that our family law permit non-consensual adoption (in contrast to the law of their homeland) is part of the price of the exercise of the right to settle here. This feature is a strong pointer against making the Article 15 request.

 

Mostyn J certainly felt that where there was the potential for a BRII application, the Judge ought to discuss that with counsel, and if so to transfer the case to the High Court.  Although BRII is dry and dusty and not a lot of fun, this decision – and whatever the Court of Appeal do with it, are going to be important for any child protection case where a parent is from another EU Country  (purely anecdotally, for my own caseload over the last five years, that’s about 15-20% of them).  It will be important that the advocates understand what would be involved in such an application and what the tests and arguments are, and important for those advising parents to know that this is an option which might be available.  For some parents, moving back to their birth country might not be something they want to do, but it is certainly a powerful tool particularly where that birth country takes a different view about non-consensual adoption.

 

 

 

The leave to oppose Tsunami

 

As anticipated,  since Re B-S showed practitioners that the historically high (perhaps even insurmountable) test for leave to oppose adoption applications had been too high, and too heavily weighted in relation to the factor of potential disruption to the child in placement, the appeals have started to come in. I understand that Ryder LJ has already spoken of a “tsunami” of appeals which are heading towards the Court of Appeal.

Here are two :-

 

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1481.html

Re L (Leave to oppose making of adoption order) 2013

The Placement Order had been made in Feb 2012 and the child placed with adopters in March 2012 (so we are getting on for a year and a half in placement). As the Court of Appeal observe, an unusual feature of the case is that the adopters had separated in the course of that placement – somewhat peculiarly they were jointly pursuing the adoption application though had not decided between themselves who the child was to live with. Early on in the court proceedings the prospective adoptive mother dropped out, leaving Mr X as the prospective adoptive father to carry on with the adoption application as a sole carer.

 

The Court of Appeal considered that the trial judge had not properly weighed the ultimate prospects of M succeeding in her application given the backdrop of uncertainty and change in the prospective adopters situation.

 

    1. When a judge considers a parent’s prospects of success for the purposes of section 47(5), he is doing the best he can to forecast what decision the judge hearing the adoption application is going to make, having the child’s welfare throughout his life as his paramount consideration. What is ultimately going to be relevant to the decision whether to grant the adoption order or not must therefore also be material at the leave stage.

 

    1. The judge deciding the adoption application would need to approach the hearing bearing in mind what McFarlane LJ said in Re G (supra) about the dangers of a linear approach to decision making in child care cases. He would have to make “a global, holistic evaluation of each of the options available for the child’s future upbringing” (Re G §50) before determining what would serve the child’s welfare throughout his life. In the present case, the strengths and the weaknesses of M’s situation would have to be considered in isolation, as would the strengths and weaknesses of Mr X’s situation, and, as McFarlane LJ said in §54 of Re G, each option would have to be “compared, side by side, against the competing option”. This exercise would have to be carried out remembering that adoption is only to be imposed where that is necessary, as the Supreme Court underlined in Re B [2013] UKSC 33.

 

    1. An option that might appear not to be in a child’s interests in one context might, by this process of global, holistic evaluation, carry the day in another context. Here, M’s case that she would be able to care for S, or alternatively that there should at least be a further assessment of her ability to do so, would not fall for consideration, as is usually the case, alongside a settled and stable adoptive placement which had been going on for some time. The competing option would involve an adoptive household which has been subjected to protracted disruption and uncertainty which is yet to be completely resolved. First, there was the separation of the adopters, then the change from a joint adoption to an adoption by Mr X on his own, with Mrs X withdrawing from S’s life completely. Mr X’s new relationship and the anticipated baby changed things again and there still remains the outstanding dispute over where Y will live. Even once that is resolved, it will no doubt take some time for the X family as a whole to learn to live with the consequences of these extensive changes. That there is uncertainty in both options, not just in M’s situation, may turn out to be a very important feature in determining what will serve S’s welfare throughout his life.

 

    1. It seems to me that where the judge went wrong was in failing to consider whether the uncertainty in the adoptive household might improve M’s prospects of success and to make allowance for that. Putting it another way, what I think was missing was a consideration of M’s present position in the context of the disruption and uncertainty in the X household.

 

    1. Although he went as far as contemplating that the adoptive placement with Mr X would not ultimately succeed, the judge dealt with that possibility by making the assumption that, in those circumstances, S would be moved by the local authority to carers whose parenting abilities were at least good enough and probably better than good enough (§56) and that, although there may be delay whilst they were identified, S would be cared for meanwhile “either by approved foster carers or by potential adopters known to have adequate parenting skills” (§59). Even if not entirely apposite to the legal situation arising here, one question that might at least have generated the right sort of consideration is whether, in the event that Mr X’s adoption application were not ultimately to succeed, as the judge contemplated was possible, it may in fact be appropriate to pursue further the possibility of a placement with M rather than S being placed forthwith by the local authority with an alternative adoptive family as the judge assumed would happen.

 

  1. I do not think the judge can be criticised for being cautious about a return to M on the evidence as it stood. He said that it would be “experimental” and did not think it likely to succeed (§57). However, he appears to have been looking for quite a high degree of present certainty in this regard, speaking for instance of M being unable currently to “satisfy” the court of her abilities (§58). The degree to which a court needs to be confident about a parent’s abilities at the section 47(5) stage is likely to vary, in my view, depending on the other circumstances of the case and I say a little more about this in the final paragraph of this judgment. Where the other option under consideration also has significant uncertainties, a lesser degree of confidence may sometimes justify the granting of leave and it seems to me that that was so here. In such circumstances, it may also be that greater allowance might be appropriate for the fact that there has not been an opportunity for the evidence to be tested (both that in favour of M and that which may undermine her case).

 

NOTE that this case didn’t get sent back by the Court of Appeal for re-hearing (i.e the judgment needed work) but the Court of Appeal instead granted the leave, and the contested adoption hearing will therefore take place. (That’s a step farther than Re W – though that case clearly laid the foundations for the Court of Appeal making such a decision). The Court also emphasise that although the impact on the placement isn’t as heavy a consideration for the second stage (the welfare decision) as previously considered, the stability and duration of the placement could be weighed in the balance when determining the solidity of the mother’s application (an otherwise solid application could flounder on that particular dimension)

    1. Nothing that I have said in this judgment should be taken as any indication of a view of the ultimate strengths and weaknesses of Mr X’s application or (apart from the preliminary determination necessary for section 47) of M’s case. The evidence is not yet complete either in relation to Mr X’s circumstances or M’s, and none of it has yet been tested.

 

  1. I would like to add a final few words of more general application than just this case. I am very conscious of the difficulties inherent in applications under section 47(5). The relationships and hopes of not just one family but two are imperilled and the material upon which the decision has to be taken is, of necessity, often far from complete and not infrequently has not been tested in a hearing with oral evidence. I have not intended in this judgment to be prescriptive as to the way in which such applications are handled by the expert family judges who resolve them with skill and sensitivity. Each case depends upon its own facts and the circumstances of individual cases vary infinitely. Where, for instance, a child has been placed with adopters for a protracted period, is well settled, and remembers nothing else, a court may well take the view that there has to be a degree of confidence about the parent’s ability to provide a suitable home for the child before it can even contemplate assessing the parent’s prospects as solid. And the cases show that the overall circumstances of the case may be such that the court may decide not to grant leave even where there is some confidence in the parent. Re B-S was an example of a mother who had achieved “an astonishing change of circumstances” (Re B-S, §3) but did not get leave to oppose adoption because of the situation of the children (ibid, §102). Re C (A Child) [2013] EWCA Civ 431 was a case of a father who could have provided for the child’s physical needs but failed to get leave where the child (who was by then 4 ½ years old) had been settled with the adopters for over 2 years and had no relationship at all with him. At the other end of the spectrum, there will be cases in which the evident deficiencies in the parent’s case are such that, notwithstanding the existence of uncertainty or other issues in relation to the adoptive placement, the parent’s case is not solid enough to justify the grant of leave to oppose.

 

[It is interesting of course that two years of placement was considered this year, by the President no less in Re C, to be quite a clear cut-off point beyond which the Court would not possibly tamper with the placement, and six months later an 18 month old placement seems to count for very little : “ C has now been settled for over two years with the adopters. How can we, how could any judge, take the risk of disturbing that?“: )

The next one, the Court of Appeal dismissed the appeal – so one looks for clues and guidance within it

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1480.html

Re D (Leave to oppose making of an adoption order) 2013

The child had not lived with mother since May 2011, and Placement Order was made on 18th May 2012, placement with adopters Sept 2012  (note, six months LATER than in the appeal above that was granted)

The original court was satisfied that there had been a change of circumstances on mother’s part, thus satisfying the first limb of the two stage test, but decided that the circumstances did not justify reopening the case. Fairly naturally, in the light of the jurisprudence in the latter part of this year, the mother appealed.  In fact, she got silked-up (which suggests that public funding MIGHT have been obtained for her, would be interested to know that)

The appeal was effectively on the Re B-S, Re G and Re W grounds, that the Court had not properly weighed the mother’s prospects of success (which don’t have to be for return, they can be in persuading the Court to NOT make the adoption order), that the positive aspects of an alternative to adoption and the negative aspects of adoption had not been properly weighed.

    1. Although Judge Caddick in the present case did not use the word “solidity” in connection with his assessment of M’s prospects of successfully opposing the adoption, that was clearly what he was looking for, finding it lacking as we can see from his statement that it would be “highly improbable” that the court would say the position was sufficiently different to enable M successfully to oppose the adoption application.

 

    1. Was he wrong to assess M’s chances in this way and/or did he fail to demonstrate in his reasoning how he arrived at this conclusion, as Ms Connolly said?

 

    1. In answering this question, it is important to read the judgment as a whole. As the court observed in Re B-S (see §74(ii)), the question of whether there has been a change in circumstances and whether the parent has solid grounds for seeking leave are almost invariably intertwined and so they were here. The position that the judge reached, as he said expressly in §18, was that there had been a change in circumstances but that there were also features of the period following the making of the placement order which weighed against the progress that M had made, three in particular being identified in §§18 to 26 of the judgment. The judge’s concern about these was that the offence in June 2012 and the incident in February 2013 in particular indicated remaining immaturity on the part of M; in my judgment he was entitled to take that view, even allowing for the difficult circumstances in June 2012. HHe He rightly put these events into the context of M’s previous immaturity and, although he could perhaps have reasoned this stage in his decision making more fully, we can see, I think, from §38 that, quite independently of the question of how L would be affected by delay and/or the disruption of her placement, he concluded that the overall picture was such that M was unlikely to be able to establish that her position was different enough to persuade a court that it was in L’s interests to be placed with her. He had the particular advantage of having heard M’s oral evidence in which the events since the placement order were explored and it seems to me that he was entitled to arrive at this assessment, which deprived the M’s prospects of the necessary solidity.

 

    1. It was entirely appropriate that the judge should consider L’s circumstances and those of the adopters. Re B-S underlines that what is paramount in adoption decisions is the welfare of the child throughout his or her life and that it is important for judges not to attach undue weight to the short term consequences to the child of giving leave. It does not, however, say that even short term consequences for the child are completely irrelevant and they certainly are not. Similarly, Re B-S recognises that in some cases the adverse impact on the prospective adopters, and thus on the child, is something which may have considerable force (§74(ix)) although equally it is important that undue weight should not be given to the argument for the reasons set out in that paragraph.

 

    1. I do not accept the argument that the judge omitted to consider, or to give proper weight to, the benefits to L of being brought up by her own mother. That vitally important factor is recognised in §37 of the judgment, albeit in quite short form and without express reference to the provisions of section 1 of the Act. It was also stressed in the passage which, in directing himself on the law, the judge cited from Re P, which concludes with a statement that the paramount consideration of the court must be the child’s welfare throughout his or her life. As I see it, the core of the judge’s decision was that he just did not consider that the changes in M (for which he properly recognised she should be commended) were going to be sufficient to enable a court to conclude that she could bring up L at the present time.

 

  1. I have not been persuaded by the arguments so cogently advanced on M’s behalf that the judge erred in his approach to this case or failed to set out his reasoning for his decision sufficiently. I would accordingly dismiss the appeal.

 

As seems to be happening a lot in the latter part of this year, the decision then turns on the precise detail of the judgment, rather than principles which can be extracted. In Re B-S, the Court of Appeal felt that the judgment was robust enough, in Re W, they didn’t. In Re L they felt the judgment was wrong, in Re D, they didn’t.  {Comparing these two cases, in one the change was qualified by later blips  – Re D, the other wasn’t – Re L, and in one the placement was stable and secure – Re D, and in the other it was rather more uncertain Re L – so even without the judgments, one gets some sort of flavour of the task faced by mother}

I am beginning to wonder whether the publication, in anonymised form, of the original judgment ought to be considered with such appeals. Where the appeal turns on the quality and wording of the judgment, and Judges up and down the country need to know what “passes” and what “fails” it might be helpful to see them in full.